Minhaz Merchant

Minhaz Merchant is the biographer of Rajiv Gandhi and Aditya Birla and author of The New Clash of Civilizations (Rupa, 2014). He is founder of Sterling Newspapers Pvt. Ltd. which was acquired by the Indian Express group

Politics is the first refuge of scoundrels. That piece of conventional wisdom may be contested by the few politicians who regard themselves as serving the public interest. Statistics tell a different tale: 1,581 MPs and MLAs across political parties face criminal prosecution. Nearly 34 per cent of MPs in the current Lok Sabha have criminal cases against them.

An alarmed Supreme Court last month directed the Narendra Modi government to set up special courts to hold “exclusive” trials against tainted lawmakers and “decide the cases within a year”.

The issue is more complicated than even the Supreme Court imagines. The Association for Democratic Reforms (ADR) has long published names of parliamentarians and state legislators who face criminal charges. Some of these charges are flimsy and relate to unlawful political morchas, crowd disturbances at campaign rallies and controversial speeches. But some charges are serious enough to warrant the Supreme Court’s intervention. The Election Commission of India (ECI) prescribes a six-year ban on convicted lawmakers. It wants to convert that into a life ban. Those affected by such a ban would include Lalu Prasad Yadav, chief of the Rashtriya Janata Dal (RJD), convicted in the fodder scam.

Politicians frequently claim that cases against them are politically motivated and fabricated. One of the founders of the Association for Democratic Reforms, Jagdeep Chhokhar, a tireless advocate of cleaning up Indian politics, has an answer to such apprehensions: “A simpler, and arguably, more effective step could be to ban all persons from contesting elections who have criminal cases pending against them, but with three safeguards against misuse. Only those cases should be considered (for disqualification from contesting) in which: (a) punishment is two (or three, or five) years or more; (b) the case has been registered at least six months before the announcement of elections; and (c) charges have been framed by a court of law. These are the safeguards that the Supreme Court has specified in 2002 but which have been forgotten in the din.”

While Chhokhar’s three safeguards deal with most politicians’ misgivings, the problem has far deeper roots. The first is the large amount of money needed to contest an election. Criminal elements and power brokers “invest” in a candidate, financing his campaign. In return they expect favours following their “sponsored” candidate’s election – government contracts, project clearances and high-level access. The cycle of corruption and crony capitalism begins here.

Every recent corruption case, from Coalgate and 2G to AgustaWestland and Aircel-Maxis, resulted from a subversion of due process. Wrongful access was given (Aircel-Maxis), projects were illegally cleared (2G), government contracts wrongfully obtained (AgustaWestland) and natural resources illegitimately auctioned (Coalgate). Till funding of elections becomes more transparent, criminals will continue to subvert the system through the MPs and MLAs whose elections they have financed.

The second root cause of rampant criminality in Indian politics is the judiciary itself. Convicts like Lalu Prasad Yadav know the legal system favours them. He remains free on bail while his appeal crawls through the higher judiciary. Today courts are the best defence for anyone wishing to escape the law. Over three crore cases are pending in courts across the country, some going back to the 1960s. For those in legal trouble, the credo is: go to court. As a strategy it serves politicians and businessmen well. Vijay Mallya and Lalit Modi, for example, have adroitly used the courts to delay justice.

The Supreme Court was being disingenuous in expressing disbelief at the number of criminal cases pending against MPs and MLAs. Were it to, suo motu, set up special courts, promote more arbitration panels headed by retired judges and quicken the pace of justice, criminally charged politicians would begin to fear the courts rather than welcome them as a protective shield. Inconvenient media can meanwhile be silenced by suing for defamation. By the time the case comes up for trial after numerous adjournments, the purpose would have been achieved: gagging the media till the story fades from public memory.

The third reason why people with criminal backgrounds are attracted to politics is the polarisation of society along caste, regional and religious lines. To commandeer vote blocs, local criminals are deployed. With most political parties functioning as feudal family-run corporations, winning elections is a vital ingredient of a successful business model.

Voters don’t seem to mind political criminality as a recent research report by the founder-chairman of ADR, Prof. Trilochan Sastry, reveals: “In every type of criminal case, the percentage amongst winners is much more. Civil society and the Election Commission have therefore asked for candidates with serious criminal cases to be barred from contesting elections. The Courts have also been inclined to take this view although they are not empowered to enforce this. A large percentage of candidates with serious criminal charges actually win elections. While only 12 per cent of candidates with a ‘clean’ record win on average, 23 per cent of candidates with some kind of criminal record win, and more alarmingly, 23 per cent of all those with serious criminal charges win. Nearly every party shows that a greater percentage of those with a serious criminal record win compared to those without any record. This partly explains the strong tendency of political parties to continue fielding people with badly tainted records.”

The case of Lalu Prasad Yadav again underscores this. Lalu has for years mollycoddled the terrorist Shahabuddin, who is currently in jail, to win Muslim votes. Shahabuddin is accused of throwing political opponents alive in vats of boiling hot oil. And yet Lalu’s RJD won the highest number of seats in the 2015 Bihar assembly election. The Samajwadi Party (SP) in Uttar Pradesh too is notorious for using criminals to subvert the law. In West Bengal and Kerala, thugs doubling up as party workers capture voting booths during elections and murder political rivals with impunity. The Trinamool Congress (TMC) has exceeded even the Left’s long record of egregious violence. Here too, voters returned the TMC to power in 2016 despite its record of anarchy and corruption.

A fish rots from the head down. The Supreme Court should keep that in mind as it wrestles with the daunting task of cleansing Indian politics.